What happens if Roe v. Wade gets overturned?

Though they realized that national abortion policy had hit a bend in the road, the tone of the rally among those who think abortion should remain legal across the U.S. was pointedly optimistic. Since the announcement of the retirement of Kennedy, who had in the past been the tie-breaking vote to uphold Roe v. Wade, they have clung to a refrain: When it comes to abortion, the public is on their side. During the last year they have been bolstered by victories even with Republicans enjoying unified control of Congress, including stopping lawmakers from cutting off federal funds from Planned Parenthood and from rolling back Obamacare.

“We are taking this very seriously because the stakes are real, but we also know that we can and will win,” said Kelley Robinson, national organizing director for Planned Parenthood Federation of America. “And if there is anything the last year has shown us it’s that this experiment of democracy is working.”

Should they fail to stop Kavanaugh’s confirmation and should he decide to overturn Roe, their optimism will be put to the test, as the issue of abortion would move back to the states, and political trench warfare would ensue.

To organizations such as the Susan B. Anthony List, which supports politicians that block abortion access, this nomination is a rare opportunity.

Roe and another Supreme Court decision, Planned Parenthood v. Casey, allowed abortion until fetal viability, which is generally understood as up to 24 weeks, and prohibited states from placing an “undue burden” on women who seek an abortion. More recently, Whole Women’s Health v. Hellerstedt took specific restrictions off the table that limit how abortion clinics must operate.

“We see that we have got a battle ahead of us, and this is the one that the pro-life movement has been looking to for decades,” Marjorie Dannenfelser, president of SBA List, told reporters on the night of the nomination.

There is, to be sure, a long and winding road to overturning Roe. To start, it’s no guarantee that the Senate will confirm Kavanaugh. Though his credentials and experience have been widely acknowledged, the reality is that Republicans have a fragile majority of 51 seats and can only afford to lose a single vote if Democratic opposition holds. Centrist GOP Sens. Lisa Murkowski of Alaska and Susan Collins of Maine are avowed supporters of abortion rights and the health status of Sen. John McCain, R-Ariz., makes it uncertain whether he’d be able to vote.

Even if Kavanaugh is confirmed, it is far from a guarantee that a newly constituted Supreme Court would overturn Roe.

Justice Clarence Thomas is the only member of the Supreme Court who has voted to overturn Roe. In 1992’s Casey case, Thomas sided with the conservative minority that stated Roe was “wrongly decided” and “can and should be overruled consistently.” The dissent rejected the idea that stare decisis, a legal principle of being deferential to prior precedents, compelled them to uphold it.

If all other conservative justices are on board with overturning the ruling, it’s still not a lock that Kavanaugh would cast the deciding vote to strike it down. On the one hand, he told Congress in 2006, as part of his nomination for the D.C. Circuit, that he would follow Roe “faithfully and fully” and considered it “binding precedent of the court.” On the other hand, while praising the legacy of the late Justice William Rehnquist in a 2017 speech to the conservative American Enterprise Institute, he highlighted how Rehnquist fought for limits on the expansion of unenumerated rights, meaning those not explicitly recognized by the Constitution. As examples, Kavanaugh mentioned how Rehnquist had joined the dissent in Roe and later voted to overturn it in Casey.

Neither example reveals with certainty how Kavanaugh would vote. When he called Roe “binding precedent,” he was speaking as a lower court candidate who would be bound by prior Supreme Court rulings, something that would not be the case if he joins the high court. His AEI speech could be viewed as a look at the influence that Rehnquist had on the court rather than a suggestion that he would have ruled the same way in every case. Furthermore, even if he agreed with Rehnquist’s decision to oppose Roe in the past and expressed weariness of expanding unenumerated rights, that doesn’t mean he wouldn’t vote to preserve a right that has been on the books for decades.

Kavanaugh has ruled in favor of abortion limits in at least one case. He dissented in a ruling from the D.C. Circuit last year that allowed an immigrant teen who was in the country illegally, and under government custody, to get an abortion. He wrote in his opinion that the majority’s position was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”

Clarke Forsythe, senior counsel at Americans United for Life, cautioned that Roe might never be overruled, but said that people who oppose abortion still had reason to be hopeful because he believes in the short term the courts will uphold state or federal limits on abortion.

“The 5-4 pro-abortion majority that has been on the court … is changing,” he said. “Justice Kennedy was intensively invested in Roe, in its future and its perpetuation, staking his historic legacy on reaffirming Roe.”

For the Supreme Court, there are a multitude of potential outcomes in between outright upholding or fully overturning Roe that would allow for more restrictions on abortion.

Justices have significant leeway not only in which cases they choose to hear but in how they address the issues they are presented with. Dozens of abortion restrictions have been challenged in court, ranging from who is allowed to provide an abortion to how it can be performed and when.

Appellate courts are considering the legality of bans on an abortion procedure known as dilation and evacuation, in Texas, Alabama, and Arkansas. The procedure, in which fetal tissue is removed from the womb with suction and surgery tools, is used in the second trimester. Judges have blocked bans from going into effect, but it’s possible they could reach the Supreme Court.

“They are pretty serious challenges to Roe because they ban a method to abortion that is the primary method to abortion after 12 weeks,” said Elizabeth Nash, senior state issues manager for the Guttmacher Institute, which tracks abortion and other reproductive policies. “When you ban this method you are eliminating access for much of the second trimester.”

Bans on how late into a pregnancy abortions are allowed could also move up through the courts. Mississippi is facing a court challenge over its 15-week ban, which has been blocked by a judge because it doesn’t meet Roe’s standards.

“The Supreme Court has been clear that those bans are unconstitutional,” said Hillary Schneller, staff attorney at the Center for Reproductive Rights. “They have been blocked everywhere challenged.”

Other cases touch on abortion without outright disputing its legality. A debate over whether states should be allowed to cut off Medicaid funding from Planned Parenthood, for instance, could be heard as early as this fall if four justices decide to take it up.

Cases such as this, Schneller said, are “about abortion but don’t as directly relate to Roe or Casey or the standards in Whole Women’s Health about the constitutional right to abortion.”

A law in Indiana obligating abortion clinics to bury fetal remains is another example that could be taken up, said Forsythe.

How abortion cases are challenged, whether in federal or state court, will also be at play in terms of how far-reaching a policy could become. The Supreme Court could narrowly uphold state laws without touching on Roe, or they could rule in a way that opens the door to states chipping away at abortion rights.

If Roe is overturned, the decision to legalize abortion would fall to states and popular opinion, and voting patterns would play a much larger role in determining abortion policy.

Current polling on abortion is nuanced, providing opportunities for both sides to claim public sympathy with their position. For instance, roughly two-thirds of the public does not want to see the Supreme Court overturn Roe. A Pew Research Center poll found that 57 percent of the public said abortion should be legal in most or all cases, compared to 40 percent who said it should be illegal in all or most cases.

But additional questioning shows that support for abortion breaks down depending on the time in the pregnancy and on the circumstances. Though 60 percent of Americans believe abortion should be legal in the first trimester, according to Gallup polling, just 28 percent say it should be legal in the second trimester, and support drops to 13 percent in the third trimester. Though 83 percent favor legalized abortion if a pregnant woman’s life is in danger and 77 percent in the cases of rape or incest, just 45 percent say abortion should be legal if “the woman does not want the child for any reason.” These findings suggest that outlawing abortion in all cases has limited popular support, but so too does the idea of allowing abortion at any time and for any reason.

These national numbers can vary widely from state to state, and that’s where those opposed to abortion see an opportunity ahead. In a post-Roe world, the states, they say, are poised to be divided into three buckets: One that will leave abortion laws in place without barriers, another ready to further restrict abortion, and a final category that would leave open the debate.

“In the remaining third there is likely to be a vigorous debate — previously impeded by Roe — to find consensus about how to protect unborn children and advance women,” said Mallory Quigley, spokeswoman for SBA List. “Reaching democratic consensus is what this nation is all about, and it’s what distinguishes us from abortion activists who pretend to have broad support but depend on unelected judges to impose radical policy on the entire nation.”

Abortion rights groups counter that women’s access to abortion should not be dictated by where they happen to live. They say the Supreme Court is needed to decide on abortion because it should be shielded by the Constitution rather than decided by politicians, who would have more power to make changes if Roe is overturned.

Should that happen, 22 states could outlaw abortion, according to the Center for Reproductive Rights.

Certain states are expected to see no impact. California, Connecticut, Delaware, Hawaii, Maine, Maryland, Oregon, Nevada, and Washington state have laws that explicitly legalize abortion. State lawmakers seeking to maintain abortion access in the wake of the Supreme Court vacancy are looking to do the same.

But a handful of states would ban abortion, some of which have exceptions to protect a pregnant woman’s life, or in cases of prosecuted rape. Louisiana, Mississippi, North Dakota, and South Dakota all have “trigger laws” that would ban abortions if Roe is overturned. Ten additional states still have pre-Roe bans on the books.

Depending on the political makeup of the presidency and Congress, overturning Roe would also open the door to passing federal restrictions that previously didn’t meet the case’s standards.

Dr. Hal Lawrence, president of the American College of Obstetricians and Gynecologists, warned that making abortion illegal would not stop it from happening. Estimates show that 5,000 women a year were killed by illegal abortions before Roe.

“When abortion access is restricted or criminalized, women do not cease to need abortion care,” he said. “They are simply forced to look for alternate methods to receive care, where there is often little to no formal medical expertise or regulation to ensure the method is either safe or effective.”

In many states, abortion is already heavily regulated, even with the parameters in Roe and Casey. Restrictions in Kentucky, Mississippi, North Dakota, South Dakota, West Virginia, and Wyoming have winnowed down the number of abortion clinics to one.

Abortion foes say restrictions are needed to protect women, but those in favor of few restrictions on abortion say they are medically unnecessary.

In larger states where abortion is more regulated, women tend to need the financial resources and the ability to take time off work to drive hundreds of miles to a clinic. Some states have mandatory waiting periods, which could necessitate a hotel stay if a clinic is outside town, and some clinics will only provide abortions once a week.

“All of those restrictions can pile up and make it so women can’t access abortion safely and legally,” Schneller said.

The restrictions on abortion can have the unintended consequence of delaying them from happening earlier in a pregnancy, at a time that has more public support. One in four women will have an abortion by age 45, studies suggest, but late-term abortions are rare, at roughly 1 percent a year.

Research suggests that women who have had an abortion during the second trimester would have preferred to have one earlier, but were unable to because of the restrictions in their state. Others may have initially wanted to have a baby but learn of fetal abnormalities or threats to their health or lives.

“Women seek abortions later in pregnancy for the same reasons as they seek it earlier in a pregnancy,” Schneller said. “They are often delayed because of all the restrictions states have passed.”

Organizations such as SBA List point to the passage of laws to limit abortion as evidence that public sentiment on the issue is facing unrest.

“How we treat unborn children isn’t settled in the hearts and minds of the American people, otherwise states would not have passed hundreds of pro-life laws designed to protect the unborn, especially in recent years,” Quigley said.

States with already limited access to abortion could make the practice even more limited.

“If Roe is undercut or overturned it really exacerbates the disparity we already see,” Nash said. “It just makes a difficult situation more burdensome and allows states to adopt restrictions that may have been struck down years ago.”

This understanding is driving protests across the country. On the night Trump announced his nominee, outside the Supreme Court, the emotional debate was in the spotlight. Alternating cries of “Protect Roe!” from hundreds of organized protesters and “Overturn Roe!” among a smaller group of gatherers drowned each other out.

Were Roe to be overturned, the passion of both sides would be transferred to battles at the legislative level. The late Justice Antonin Scalia’s take on such an outcome, as he described in arguing for striking down Roe, was that the abortion issue would be, “resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”